THE LANDLORD can attach and sell the tenant's personal belongings to recover rental owed.
THE LANDLORD can attach and sell the tenant's personal belongings to recover rental owed.

RENTAL WATCH: What recourse do landlords have for rental defaulters

By Dr Sayed Iqbal Mohamed Time of article published May 29, 2019

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RENTAL WATCH - THE law gives the landlord the right to attach and sell the tenant’s personal belongings to recover rental owed. This right is referred to as the landlord’s lien or tacit hypothec, and refers to a landlord’s real right to the tenant’s goods that are in his or her dwelling (Webster v Ellison 1911 AD 73), including the tenant’s money (Kahn & Lotz [1998]).

In other words, the landlord has the right to seize the tenant’s movables or money, but this right, which is implied or unspoken, has to be perfected by following certain legal procedures. The landlord can obtain a court order instructing the sheriff to attach the tenant’s personal goods on the rental property for the tenant-debtor’s failure to pay rental.

The landlord can lodge a complaint for unpaid rentals and seek an attachment order through the Rental Housing Tribunal in terms of section 13 (12)(c) of the Rental Housing Act.

In the absence of an unfair practice, the landlord can also perfect the hypothec through the Magistrate’s Court. In terms of the Magistrate’s Courts Act, 32 of 1944, the landlord can use:

i)A section 31 application whereby a summons with an automatic rent interdict is issued. A rent interdict prevents the tenant from removing her or his personal belongings over which the landlord has a right for unpaid rentals.

ii)A section 32 (attachment of property in security of rent) allows for the tenant’s goods to be attached by the landlord deposing to an affidavit. Information in the affidavit must include:

The address of the dwelling.

The amount of unpaid rental. The tenant was placed in mora (default) and despite the demand to pay in the space of seven days and upwards, failed to pay the arrears rental, or:

That such demand was made and that the tenant is about to remove the goods from the dwelling to avoid payment of the rental.

An attachment order gives the landlord real security and allows the sheriff to identify the tenant’s goods and list these on an inventory, pending the court’s final order. The goods may be removed and stored by the landlord or remains in the dwelling to be sold later.

What option does an occupant or third party have if personal items are attached by the sheriff?

The landlord will attach goods on his or her property that may belong to a third party, if he or she has no knowledge of it. Once the third party informs the landlord and can prove that the goods do not belong to the tenant, the goods may be released.

The landlord’s hypothec is therefore extended to the third party’s property provided the third party gave consent for his or her goods to be on the tenant’s leased premises indefinitely for the tenant’s use and the landlord is unaware of the fact that the goods are owned by the third party.

The landlord’s hypothec operates automatically by the mere presence of the goods brought on to the leased premises, including those of the third party. Once it is attached, it cannot be removed by the third party and its sale in execution cannot be prevented.

In Sax Investments and Another v Tlale Holdings and Another 2010 (2) BLR 532 HC, the court held that the landlord’s hypothec cannot be defeated when a third party removes the goods from the leased premises after it was legally attached. A court may also order the tenant to return the goods he or she removed to defeat the landlord’s lien (Webster v Ellison case).

In Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495 (T) the court held that the third party’s goods must be released since its ownership had come to the landlord’s knowledge.

Should the landlord seize goods that belong to someone else and not the tenant, that person will have to approach the court to set aside the order. This is called an inter-pleader proceedings or summons, which can be a costly application and must not be used to mislead the court.

It would be wise to have a written clause that the tenant will inform the landlord of any item belonging to a third party and have these items listed and attached to the lease and amended. The tenant can lodge a complaint with the Rental Housing Tribunal if the landlord seized goods unlawfully.

Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451 / [email protected] or [email protected]

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